Savage v. Crag Lumber Co.

• Decision Date: 11 February 1960
• Citation: 2 Cal.Rptr. 498,177 Cal.App.2d 770
• Court: California Court of Appeals Court of Appeals
• Parties: Fred SAVAGE, Plaintiff and Respondent, v. CRAG LUMBER CO., Inc. and Eastshore Lumber Company, Defendants and Appellants. Civ. 9727.

Page 498

2 Cal.Rptr. 498

177 Cal.App.2d 770

Fred SAVAGE, Plaintiff and Respondent, v. CRAG LUMBER CO., Inc. and Eastshore Lumber Company, Defendants and Appellants.

Civ. 9727.

District Court of Appeal, Third District, California.

Feb. 11, 1960.

Morris M. Grupp, San Francisco, for appellants.

Spurr & Brunner, Ukiah, for respondent.

VAN DYKE, Presiding Justice.

This is an appeal from a judgment in a declaratory action which quieted respondent's title to two tractors and awarded him a separate money judgment against each of the appellants.

The trial court made the following findings of fact: On and prior to March 1, 1955, defendant Crag Lumber Company, Inc., (hereinafter called Crag) was the purchaser under contract of conditional sale of certain heavy logging equipment. The seller was Moore Equipment Company of Stockton (heeinafter called Moore). Title was reserved by Moore pending payment. As of March 1, 1955, there was unpaid the sum of $26,719.26 upon both tractors. Prior to March 1, 1955, plaintiff and defendant Crag entered into an oral agreement wherein Crag agreed to sell and plaintiff agreed to buy the tractors upon the following terms: Plaintiff should pay Crag an amount equal to the balance due to Moore, payment to be made by deducting, from his earnings, $2 per thousand board feet of all timber logged by him through his use of said equipment. When the balance owed by Crag to Moore should have been fully paid to Crag plaintiff would become owner of the equipment. Crag agreed to pay to Moore the balance due on its contract with Moore. The court further found that plaintiff requested of Crag's general manager, one Ed Lessard, with whom he dealt, that the contract be put into writing, but Lessard refused, stating that a writing was not necessary, that his word was good, and that he would live up to his oral agreement. Soon after March 1, 1955, relying upon said oral contract and the said representations of Lessard that it would be performed as agreed, plaintiff took possession of the tractors. He repaired and restored them at a cost to him of some $3,000 and put them to work in the Crag woods for the purpose of producing logs for the Crag lumber mill. Pursuant to said agreement plaintiff paid Crag from March 1, 1955 through August, 1957, a sum in excess of $26,719.26, to-wit: the sum of $28,394.68 and also paid to Eastshore Lumber Company from September 1, 1957 through December, 1957, $2,326.13. In December of 1956 Crag fully paid Moore the balance due under its contract with Moore. The overpayments made by plaintiff to Crag of $1,675.42, and to Eastshore Lumber Company of $2,326.13 were paid under mistake by plaintiff in the belief that he was making payments due under said oral agreement and without knowledge that he had paid to Crag the entire balance due from him by June 1, 1957. Not until the end of 1957 did plaintiff learn there was likely to be a change in management of Crag from Lessard to Eastshore Lumber Company and he first became suspicious that his contract with Crag would not be honored on August 29, 1957, when he demanded of Crag a statement of the balance due from him on the purchase price of the equipment. Thereafter, on September 5th, plaintiff for the first time learned that it was not the intention of crag to honor his oral agreement and that Crag contended that his possession of the tractors was pursuant to the terms of a lease rather than a contract of sale. Before the end of August, 1957, Eastshore Lumber Company had acquired all the capital stock of Crag and effective September 1, 1957, took over the management of Crag and caused the assets of Crag to be transferred to Eastshore Lumber Company. By reason thereof Eastshore Lumber Company claimed to be the owner of the tractors, subject only to the right of plaintiff to possession as a lessee thereof. Plaintiff has title to said equipment and is entitled to possession thereof. The court gave judgment pursuant to said findings, including a money judgment against Crag of $1,675.42 and against Eastshore Lumber Company of $2,326.13.

Appellants argue at length that they properly raised the defense of the statute of frauds and that, contrary to a finding of the trial court, they never waived that defense. We need not discuss these matters, since it is conceded by respondent that the defense of the statute was an issue in the case and that the finding of waiver was without support. We may say we agree that the statute was properly in the case as a defense. However, the findings, supported by substantial evidence, show that the contract made was not within the statute of frauds since the property bargained for was delivered into the possession of respondent and while in his possession after such delivery was fully paid for. When the bargain was made respondent, a former employee of Crag, was in a hospital recovering from an accident involving the loss of a leg. There Lessard visited him and the two men came to the agreement found by the court. The evidence as to their conversation is conflicting and it is apparent that, as the trial judge once remarked, the bargain they made was somewhat 'fantastic', but it was proved to the satisfaction of the trial court and we are bound by that court's findings. Respondent was an experienced logger and had been doing such work for Crag for some time. The generous nature of the bargain may have been in part motivated by the sympathy of Lessard for respondent's...